Blair and Aikman, JJ.
1. The plaintiff sued for the redemption of a usufructuary mortgage, dated the 1st of May, 1890. The mortgagees pleaded that the mortgage in question did not apply to the land which was sought to be redeemed, and they alleged that in the land sought to be redeemed they had a tenancy. The Court of the Munsif held that the mortgage did apply to the plot in which the tenancy of the mortgagees lay, and gave the plaintiff a decree for redemption; but, having regard to the fact of the existence of the tenancy, declined to give him a decree for possession. The Court of first appeal agreed with the finding that the mortgage applied to the plot of which the mortgagees declared themselves to be, and in the absence of evidence by the plaintiff must be taken to be, tenants. The first appellate Court, however, held that the defendants by their act of accepting the mortgage of the game land had changed the nature of their possession, and that the plaintiff, when he claimed redemption, was entitled to get actual possession. On appeal to this Court, our brother Banerji held, supporting the decision of the lower appellate Court, that it may be rightly inferred, and I fake it to be the inference at which the lower appellate Court had arrived, that the defendants ceased to be the tenants of the plaintiff by taking a mortgage of the land of which they were tenants up to the date of the mortgage. In my opinion the lower appellate Court, and also the learned Judge of this Court, held that as an inference of law arising from the fact of the defendants accepting a mortgage from their landlord, and they held not upon any evidence external to that transaction. As a proposition of law, we find ourselves unable to accept the ruling of the Judge of this Court and of the lower appellate Court. In our opinion the effect of the mortgage was not to destroy the tenancy, but only to suspend the obligation of the tenant to pay rent to the landlord while the mortgage subsisted. We entirely agree with the ruling of our brother Burkitt in second appeal No. 122 of 1898, upon which judgment was delivered on the 20th December, 1898, a case which, we may remark, would properly find place in the Indian Law Reports, that no such extinction of tenancy or merger in effect took place on the grant to an occupancy tenant of a usufructuary mortgage by his landlord. In our opinion the ruling in that case is absolutely sound law, and governs cases of tenancy of a less durable character than an occupancy right. I would therefore decree this appeal, set aside the judgment of the Judge of this Court and also of the lower appellate Court, and restore the decree of the Munsif, with this observation that the possession to which the plaintiff is entitled is a possession subject to the subsisting tenancy. He will have the right to receive the rent, but will not enter into physical possession until such time as the tenancy has been determined according to law.
2. I am of the same opinion, but as we are differing from our learned colleague, I think it necessary to add a few words. The suit was, as has already been stated, one for redemption of a mortgage and for actual possession of the mortgaged land. The mortgage deed contains no materials by which the land mortgaged can be ear-marked. The defendants pleaded that the land which the plaintiff sought to get possession of had been for a long period anterior to the date of the mortgage held by them as agricultural tenants. It is true that they denied that the mortgage related to the land claimed by the plaintiff, and in this respect the finding of the Court of first instance was against them, and to that finding they submitted. But with reference to the defendant's plea that they had prior to the mortgage been tenants of the land in suit, the learned Munsif found in favour of the defendants, and that finding the plaintiff did not in his appeal venture to challenge. The Munsif came to the conclusion upon the evidence that the defendants had been in possession of the land in suit for ten years prior to the mortgage. He went on to discuss the question whether the defendants' occupation of the land during the term of the mortgage would go to make up the term necessary to give them a right of occupancy in the land, and he came to the conclusion that the defendants had acquired a right of occupancy. In my judgment the Munsif's conclusion was wrong, and the status of the defendants was not a matter which he as a Civil Court was empowered to determine. The finding as to the status of the defendants is, however, quite irrelevant to this case. The lower appellate Court and our learned colleague came to the conclusion that the effect of the mortgage was to put an end finally to the defendants' tenancy. In my opinion that is a conclusion which is not warranted by law. It is not pretended that the inference as to the effect of the mortgage is based upon any evidence. I entirely agree with my brother Blair in what he has said upon this question. The effect of the mortgage was to suspend for the time being the relationship of landholder and tenant between the parties. When the mortgage is redeemed, the parties are relegated to the position which they occupied immediately before the mortgage was executed. Our learned colleague, whose judgment is under appeal, distinguishes the case decided by Mr. Justice Burkitt on the 20th of December, 1898, on the ground that the tenancy there was an occupancy tenancy. I cannot draw any such distinction. If the defendants were not occupancy tenants when they entered into the mortgage they were at all events agricultural tenants, who had certain rights including the right to retain possession of their holding until ousted in due course of law. For the reasons set forth above, I concur in the order proposed.
3. By The Court.--The order of the Court is that the appeal is allowed with costs; the decision of this Court and of the lower appellate Court set aside with costs, and that of the Court of first instance is restored. We extend the time for payment of the mortgage money up to the 10th of September next.
 The judgment in this case was as follows:
In my opinion the decision of the Additional Judge in this case cannot be supported. I entirely dissent from the novel and extraordinary doctrine laid down by the Additional Judge that, if an occupancy tenant lends money to his landlord and takes from his landlord a mortgage of an area of land, which includes his own occupancy holding, he thereupon ceases to be an occupancy tenant under some novel doctrine of merger, apparently invented for this case. If this doctrine were affirmed, the result would be that the occupancy tenant referred to would be in a much worse position after his possession as mortgagee had ceased than before. For according to the Additional Judge he would have ceased to be an occupancy tenant. I cannot assent to this doctrine. I see no reason why in such a case the occupancy tenure should be forfeited, and it is the first time I have heard such a doctrine mooted.
As to the fact that the defendant was an occupancy tenant, there can be no doubt. It is admitted that a suit for his ejectment was dismissed by the Revenue Court on the ground that he was an occupancy tenant. The Additional Judge says he was not. That, however, is not a matter within his cognisance to decide. It is for the rent Court--and rent Court alone--to decide the nature of a tenancy. The rent Court in this case has held that the defendant is an occupancy tenant.
The Courts below have given the plaintiff a decree for redemption on payment of one hundred and thirty rupees. As far as it goes, that decree is right. But there must be this added to it, viz., that as the defendant is an occupancy tenant, the plaintiff on redemption will not be entitled to physical possession by ouster of the defendant.
I allow this appeal as stated above with costs.